93 Decision Citation: BVA 93-01036
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-20 054 ) DATE
)
)
)
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (hereinafter PTSD), currently rated 30 percent
disabling.
WITNESSES AT HEARINGS ON APPEAL
Appellant, Emma J. and B. M.
ATTORNEY FOR THE BOARD
P. B. Werdal, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision dated
April 14, 1992, from the Winston-Salem, North Carolina,
Regional Office (hereinafter RO). The veteran served on
active duty from May 1965 to May 1973. The notice of
disagreement was received May 8, 1992. The statement of the
case was sent to the veteran May 14, 1992. A hearing was
held before a hearing officer June 17, 1992. A supplemental
statement of the case was sent to the veteran July 13,
1992. The substantive appeal was received August 26, 1992.
In a rating decision dated September 15, 1992, the RO denied
the veteran's claims for a total disability rating due to
individual unemployability and entitlement to
nonservice-connected disability pension. A hearing was held
before a member of the Board on December 10, 1992. A notice
of disagreement was received at that hearing regarding the
denial of the veteran's claims for a total disability rating
based on individual unemployability, and for
nonservice-connected pension benefits. The veteran is not
represented in his appeal.
REMAND
In a claim for a permanent and total disability rating for
pension purposes, the duty to assist includes identifying
and assessing the level of disability resulting from each
disability based on the appropriate diagnostic codes found
in the Department of Veterans Affairs' (hereinafter VA)
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1991).
Brown v. Derwinski, 2 Vet.App. 444 (1992). If a total
schedular rating is present, the RO should then determine
whether the disability is permanent using the "average
person" standard in 38 U.S.C.A. § 1502(a)(1) (West 1991), 38
C.F.R. § 4.15 (1991), and Brown, id. The RO should then
evaluate whether the veteran is unemployable based on his
age, disabilities, vocational background and other related
factors under 38 C.F.R. § 3.321(b)(2) (1991).
In this case, it appears that all of the disabilities
identified during the VA examination in March 1992 were
identified and rated in the September 1992 rating decision.
However, after obtaining additional medical records, another
VA examination should be performed because the United States
Court of Veterans Appeals (hereinafter Court) has held that
a VA examination performed by an examiner who did not have
access to the veteran's complete medical record was
inadequate. Roberts v. Derwinski, 2 Vet.App. 387 (1992).
Therefore, after the additional medical records have been
associated with the claims folder, the veteran should be
afforded a new VA examination.
The veteran attributes his alcoholism and drug abuse to his
service-connected PTSD, and seeks secondary service
connection for them. The Board observes that, in the rating
decision dated September 15, 1992, the RO decided that the
veteran's alcohol and substance abuse was due to his own
willful misconduct, but there is no indication of record
that the veteran was notified of that decision, nor of the
effect that decision has on a claim for nonservice-connected
pension benefits. In Abernathy v. Derwinski, 2 Vet.App. 391
(1992), the Court held that the issue of the veteran's
alcoholism should have been addressed by the VA in its
decision, but was not.
The Board observes that at the hearing in December 1992 the
veteran filed a notice of disagreement regarding denial of
his claim for a total disability rating for compensation
based on individual unemployability, and for his claim for
nonservice-connected pension benefits. However, a statement
of the case has not yet been prepared that addresses those
claims. That should be done, and the veteran should be
afforded the opportunity to file a substantive appeal in
order to perfect an appeal on either issue.
At the hearing before a Board member in December 1992, the
veteran testified that he had applied for Social Security
disability benefits, but his application had been denied.
He indicated he was appealing that decision. Copies of the
decision in which the application was denied, and the
relevant documents upon which that decision was based,
should be associated with the claims folder. Copies of any
subsequent decision, and the relevant documentary evidence,
should also be obtained and associated with the claims
folder.
The veteran testified that he has received both inpatient
and outpatient treatment from VA medical facilities in
Winston-Salem and Salisbury, North Carolina, and has also
attended the Vet Center in Greensboro, North Carolina.
However, the claims folder does not appear to contain all
relevant documents from those facilities.
The veteran also submitted portions of his service personnel
file. However, the Board is of the opinion that his
complete service personnel file should be associated with
the claims folder.
The VA has the duty to assist the veteran in the
nonadversarial process of claims adjudication. 38 U.S.C.A.
§ 5107 (West 1991). That duty to assist includes developing
all claims reasonably raised from a liberal interpretation
of all the evidence of record at the time the claims folder
is before the Board. EF v. Derwinski, 1 Vet.App. 324
(1991). Claims that are inextricably intertwined cannot be
adjudicated piecemeal. Harris v. Derwinski, 1 Vet.App. 180
(1991). The Board concludes that the veteran's claim for an
increased rating for PTSD cannot be reviewed by the Board
until the claims for a total rating based on individual
unemployability, for nonservice-connected pension benefits,
and for secondary service connection for alcoholism and drug
abuse have been developed and adjudicated. Accordingly,
this matter is REMANDED for the following action:
1. The RO should associate with the
basic claims folder the veteran's
Chapter 31 vocational rehabilitation
folder.
2. The RO should obtain the veteran's
service personnel records, and should
associate those records with the basic
claims folder.
3. The RO should contact the Social
Security Administration and obtain copies
of that agency's records regarding the
veteran's claim for Social Security
disability benefits. Those copies should
be associated with the claims folder.
4. The RO should obtain copies of all
inpatient and outpatient treatment
records reflecting treatment administered
to the veteran at the VA medical
facilities in Winston-Salem, North
Carolina, and Salisbury, North Carolina,
as well as records from the Vet Center in
Greensboro, North Carolina. Those
documents that have not yet been
associated with the claims folder should
be associated with the claims folder.
5. The veteran should be afforded a
complete VA examination to include a
special psychiatric examination to
identify and assess the current status of
each of his disabilities including his
service-connected disorders. The
examiners should be provided with the
claims folder. All findings should be
reported in detail. The psychiatrist
should render an opinion regarding
whether the veteran is prevented from
obtaining and retaining substantially
gainful employment as a result of his
post-traumatic stress disorder alone.
The psychiatrist should set forth
separately all symptoms due to the
veteran's PTSD, and all symptoms due to
other psychiatric disorders.
6. The RO should notify the veteran that
it was determined in the September 15,
1992 rating action that the veteran's
alcohol and drug abuse are due to his own
willful misconduct. He should be
notified of his procedural and appellate
rights in that regard.
7. The RO should, for pension purposes,
compile a list of all the veteran's
disabilities and rate them individually
and in combination pursuant to the VA's
Schedule for Rating Disabilities, 38
C.F.R. Part 4 (1991), and should state
whether any of the veteran's disabilities
are of misconduct origin. The RO should
also state the reasons and bases for each
disability rating and for any
determination of misconduct.
8. The RO should review the evidence and
consider whether the veteran is
permanently and totally disabled under 38
U.S.C.A. § 1502(a)(1) (West 1991),
38 C.F.R. §§ 4.15, 4.16 or 4.17 (1991)
using the "average person" standard and
the "unemployability" standard discussed
in Brown.
9. The RO should evaluate the veteran's
claim for pension under the provisions of
38 C.F.R. § 3.321(b)(2) (1991).
Following completion of the requested
development, the RO should then review
the veteran's claim. If the matter of
entitlement to pension is not resolved to
his satisfaction, he should be provided a
statement of the case that contains a
summary of the relevant evidence and a
citation and discussion of pertinent laws
and regulations regarding the denial of
pension. He should be furnished
procedural rights regarding the filing of
a substantive appeal on that issue.
10. The RO should also consider whether
the veteran is entitled to a total rating
for compensation based on individual
unemployability and if this is not
granted then he should be furnished a
statement of the case on that issue and
informed of his procedural rights
regarding the filing of a substantive
appeal.
The purpose of this REMAND is to assist the veteran in
developing his claim, and no action is required of him until
further notice. The Board expresses no opinion, either
factual or legal, as to the ultimate determination warranted
in this case pending completion of the requested action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
C. D. ROMO
E. M. KRENZER
38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).